STATE of Arizona, Appellee, v. Scott Douglas NORDSTROM, Appellant.
No. CR-98-0278-AP
Supreme Court of Arizona.
Sept. 24, 2003.
77 P.3d 40 | 206 Ariz. 242
¶ 43 Ring II thus instructs that under the Sixth Amendment a jury must determine an aggravator which exposes a defendant in a capital case to a penalty exceeding the maximum he would receive if punished according to the facts reflected in the jury verdict alone.
¶ 44 Today the majority concludes, notwithstanding Apprendi/Ring, that factual findings by the judge alone on capital aggravators may nevertheless be allowed to stand on the basis that the constitutional violation is harmless. I disagree. The right to jury trial under the Sixth Amendment is fundamental, and because total jury deprivation occurred in the phase of Sansing‘s trial that resulted in the capital sentence, the error cannot be deemed harmless. Error of such magnitude undermines the very structure of the process. In light of Ring II, I do not believe this court is authorized to speculate on what a jury might have done. We cannot, with propriety, substitute our judgment on factual issues so critical to a defendant facing a possible death sentence.
¶ 45 Nor can I accept the premise, advanced by the State, that the instant case is controlled or influenced by Neder v. United States, 527 U.S. 1, 119 S.Ct. 1827, 144 L.Ed.2d 35 (1999). Neder is a different case. There, the error stemmed from a jury instruction that failed to provide direction on a prosecutorial issue in the government‘s substantive case. But evidence against Neder had been properly introduced on the issue in question, and the jury did deliberate and reach a verdict that necessarily included resolution of that issue. Moreover, the issue appears to have been uncontested. Accordingly, the Supreme Court found error, but reviewed it under a harmless standard. The error was viewed and treated as inconsequential because the jury heard all the evidence and its determinations were predicated on a completed record. Conversely, in the instant case, the jury neither heard the evidence in support of the aggravating factors nor did the jury deliberate thereon or make the ultimate factual determination that resulted in the defendant‘s capital sentence.
¶ 46 I would remand the case for jury resentencing, strictly on the basis of the Sixth Amendment violation. See also State v. Ring, 204 Ariz. 534, 565-67, ¶¶ 105-14, 65 P.3d 915, 946-48 (2003) (Feldman, J., concurring in part, dissenting in part) (Ring III).
Law Office of David Alan Darby by David Alan Darby, Tucson, Attorney for Appellant.
SUPPLEMENTAL OPINION
RYAN, Justice.
¶ 1 The sole issue before us is whether reversible error occurred when a trial judge sentenced Scott Nordstrom to death under a procedure the United States Supreme Court held unconstitutional in Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002) (Ring II).1 Based on our review of the record, we cannot conclude that the Ring II violation constituted harmless error.
I.
¶ 2 In Ring II, the United States Supreme Court held that Arizona‘s capital sentencing scheme violates the right to a jury trial guaranteed by the Sixth Amendment to the United States Constitution.1 Id. at 608-09, 122 S.Ct. at 2443. The Court declared that “[c]apital defendants, no less than noncapital defendants ... are entitled to a jury determination of any fact on which the legislature conditions an increase in their maximum punishment.” Id. at 589, 122 S.Ct. at 2432. The Court reversed our decision in State v. Ring, 200 Ariz. 267, 25 P.3d 1139 (2001) (Ring I), and remanded for further proceedings consistent with its decision. Ring II, 536 U.S. at 609, 122 S.Ct. at 2443.
¶ 3 Following the Supreme Court‘s Ring II decision, we consolidated all death penalty cases in which this court had not yet issued a direct appeal mandate, including Nordstrom‘s, to determine whether Ring II requires us to reverse or vacate the defendants’ death sentences. State v. Ring, 204 Ariz. 534, 545, ¶ 14, 65 P.3d 915, 926 (2003) (Ring III). We concluded that we will examine a death sentence imposed under Arizona‘s superseded capital sentencing statutes for harmless error.2 Id. at 555, ¶ 53, 65 P.3d at 936.
II.
¶ 4 A jury convicted Nordstrom of six counts of first degree murder, along with
¶ 5 The trial judge conducted a sentencing hearing to determine whether any aggravating and mitigating circumstances existed. The judge found beyond a reasonable doubt the presence of three aggravating circumstances for each murder: 1) Nordstrom had previously been convicted of another offense in the United States for which a sentence of life imprisonment or death was imposable under Arizona Revised Statutes (“A.R.S.“) section 13-703(F)(1) (Supp.1993); 2) Nordstrom committed the murders in expectation of the receipt of pecuniary gain under
III.
A.
¶ 6 Under
¶ 7 The trial judge concluded that each of the murders at the Moon Smoke Shop satisfied the F(1) aggravating factor as to the Firefighters’ Union Hall murders, and that the Firefighters’ Union Hall murders satisfied the F(1) aggravating factor for the Moon Smoke Shop murders. Other than arguing that a jury must find all aggravating factors, an argument we rejected in Ring III, 204 Ariz. at 552-55, ¶¶ 44-52, 65 P.3d at 933-36, Nordstrom concedes that under our decision in Ring III, “remand for resentencing on this aggravating factor is not required.” Accordingly, we will not disturb the trial court‘s finding that the (F)(1) aggravating factor was proven.
B.
¶ 8 Commission of an offense “as consideration for the receipt, or in expectation of the receipt, of anything of pecuniary value” is an aggravating circumstance.
¶ 9 We will find harmless error affecting this factor only if we are convinced beyond a reasonable doubt that no reasonable jury could fail to find that the state proved pecuniary gain beyond a reasonable doubt. Ring III, 204 Ariz. at 560, ¶ 79, 65 P.3d at 941.
¶ 10 The murders at both the Moon Smoke Shop and the Firefighters’ Union Hall occurred simultaneously with the robberies of each establishment and therefore facilitated Nordstrom‘s ability to secure pecuniary gain. No evidence suggests any motive for the murders but pecuniary gain. And no evidence suggests the murders were committed as a result of a “robbery gone bad.” See Nordstrom, 200 Ariz. at 256, ¶ 94, 25 P.3d at 744; see also State v. Jones, 197 Ariz. 290, 309, ¶ 56, 4 P.3d 345, 364 (2000) (finding on Nordstrom‘s codefendant‘s direct appeal of his convictions on the same charges that the robberies in this case were not “robberies gone bad“).
¶ 11 Although Nordstrom now argues “it would be mere speculation” for this court to find harmless error with respect to this factor, during the sentencing hearing Nordstrom admitted that the State proved the pecuniary gain aggravating factor beyond a reasonable doubt.4 In Ring III, we held that when a “defendant stipulates, confesses or admits to facts sufficient to establish an aggravating circumstance, we will regard that factor as established.” 204 Ariz. at 563, ¶ 93, 65 P.3d at 944. We therefore conclude that no reasonable jury, hearing the same evidence as the judge, could find that Nordstrom did not commit the murders for pecuniary gain. Accordingly, any Ring II violation was harmless beyond a reasonable doubt.
C.
¶ 12 An aggravating factor exists if “[t]he defendant has been convicted of one or more other homicides ... which were committed during the commission of the offense.”
¶ 13 “We will find harmless error affecting this factor in those cases in which no reasonable jury could find that the state failed to prove the [(F)(8)] factor beyond a reasonable doubt.” Ring III, 204 Ariz. at 561, ¶ 82, 65 P.3d at 942.
¶ 14 The trial court found that “[e]ach of the two murders at the Moon Smoke Shop constitutes proof of this factor as to the other; each of the four murders at the Firefighter‘s [sic] Union Hall constitutes proof of this factor to each of the others.” The gist of Nordstrom‘s argument on this issue is that the trial court erred in counting the felony murders “against the premeditated murder” in finding that the (F)(8) factor had been proven. According to Nordstrom, because he was “convicted unanimously by the jury of only one premeditated murder in the Moon Smoke Shop and one premeditated murder in the Firefighter‘s [sic] Hall robberies,” the remaining felony murders, both at the smoke shop and at the union hall, should not be counted as “collateral” murders for purposes of (F)(8).
¶ 15 Nordstrom‘s contention ignores the fact that “first degree murder is only one crime regardless of whether it occurs as a premeditated murder or a felony murder.” State v. Berndt, 138 Ariz. 41, 45, 672 P.2d 1311, 1315 (1983). Moreover, “[t]he plain
¶ 16 Because the armed robberies and murders at both the Moon Smoke Shop and the Firefighters’ Union Hall were committed during a continuous course of criminal conduct at each place, the murders were temporally, spatially, and motivationally related. Nordstrom does not argue otherwise. Accordingly, “any error as to the (F)(8) aggravator was harmless because we believe that no reasonable jury could have found differently than the trial judge.” State v. Tucker, 205 Ariz. 157, 166, ¶ 66, 68 P.3d 110, 122 (2003).
D.
¶ 17 Based on our review of the record, we conclude that no reasonable jury would have failed to find the aggravating factors set forth in
IV.
¶ 18 As we explained in Ring III, our harmless error inquiry does not end with the aggravating circumstances. 204 Ariz. at 565, ¶ 104, 65 P.3d at 946. We can affirm a capital sentence only if we can conclude beyond a reasonable doubt “that no rational trier of fact would determine that the mitigating circumstances were sufficiently substantial to call for leniency.” Id. Because of our conclusion that any Ring II error as to the aggravating factors was harmless, we must now review whether harmless error occurred with respect to the mitigating factors. We conclude that because some of the findings with respect to the mitigating factors rested on an assessment of the credibility of witnesses, we must remand for resentencing.
¶ 19 At the sentencing hearing, Nordstrom offered no statutory mitigating factors. Nevertheless, the trial court examined each statutory mitigating circumstance and found none were supported by the evidence.
¶ 20 Nordstrom offered the following non-statutory mitigating factors: (1) difficult family and childhood background; (2) good record of employment; (3) residual doubt as to guilt; (4) mental health and substance abuse problems; (5) caring parent and family; (6) no prior convictions for serious offenses; (7) artistic talent; (8) he was a follower; and (9) successful adjustment to prison. The trial court found Nordstrom had proven by a preponderance of the evidence the non-statutory mitigation factors of good employment record, and caring parents and family. But the court found that this mitigation was “insufficient to call for leniency.”
¶ 21 Nordstrom now argues that a jury, hearing the same mitigation evidence as did the trial court, could have found one or more of the statutory mitigating factors to be proven. He also argues that the jury could have found one or more of the non-statutory mitigating factors not found by the trial court. He therefore contends that this matter must be remanded for resentencing.
¶ 22 The State first argues that we should revisit the portion of Ring III that held we must also examine the harmlessness of the mitigation findings and the weighing and balancing of aggravating and mitigating circumstances before we can uphold a sentence of death. The State, however, presents no new arguments or case law. Therefore, we decline the State‘s invitation to revisit Ring III‘s holding on this issue.
¶ 23 The State next argues at length that any Ring III error as to the mitigating circumstances, whether statutory or non-statu-
¶ 24 Nordstrom presented expert testimony that he suffered from alcohol dependence, cannabis dependence, methamphetamine abuse, and “two psychiatric diseases of post-traumatic stress disorder and antisocial personality disorder.”6 In addition, his mother testified that Nordstrom‘s father and stepfather were emotionally abusive to him, he had a learning disability, he began to abuse drugs and alcohol at a young age, and he was a follower.
¶ 25 The trial judge rejected this evidence because he found no causal connection between Nordstrom‘s diagnoses and the murders. Nordstrom‘s expert testified however, that there “could ... be a causal connection to the commission of a violent crime” and Nordstrom‘s alcohol and substance abuse, his dysfunctional and abusive family, his “antisocial behavior,” his impulsiveness, and his “learning problems as a child.”
¶ 26 We recognize that the evidence supporting Nordstrom‘s claim that the murders were causally connected to his substance abuse and mental health problems was not particularly compelling. But he did present evidence from an expert on this issue. Cf. State v. Sansing, 206 Ariz. 232, 239, ¶ 26, 77 P.3d 30, 37 (2003) (finding that “[t]ypically, in those cases in which a defendant established statutory impairment, the defendant presented an expert witness“).
¶ 27 Accordingly, we cannot conclude beyond a reasonable doubt that a jury would not have weighed this evidence differently than did the trial judge. And a different finding as to the mitigating circumstances could affect the determination whether the mitigating circumstances are “sufficiently substantial to call for leniency.”
V.
¶ 28 For the foregoing reasons, we vacate Nordstrom‘s death sentences and remand for resentencing by a jury under
CONCURRING: RUTH V. McGREGOR, Vice Chief Justice and REBECCA WHITE BERCH, Justice.
JONES, C.J., concurring in part, dissenting in part:
¶ 29 I concur in the result, but I respectfully dissent from the majority‘s conclusion that harmless error analysis is appropriate where sentencing determinations are made by the trial judge in the absence of the jury. The right to trial by an impartial jury is fundamental. The sentencing phase is, of itself, a life or death matter. Where a judge, not a jury, determines all questions pertaining to sentencing, I believe a violation of the Sixth Amendment to the Constitution of the United States has occurred. In the aftermath of the Supreme Court‘s decision in Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002) (Ring II), the absence of the jury in the sentencing phase of a capital trial necessarily amounts to
Justice HURWITZ took no part in the consideration or decision of this case.